Digital Assets and Florida Law

Any time a loved one passes away, that person leaves behind a lifetime of possessions, personal property, and memories. Since we use the Internet for so many aspects of our lives, people also now leave an online footprint. In addition to an estate’s tangible assets – like jewelry, retirement accounts, and boats, executors of an estate must deal with intangibles like email accounts, online bank accounts, and social media posts. In the past, executors and family members found it difficult if not impossible to access their loved ones’ digital assets. However, the law is now catching up with technology as lawmakers across the country adopt laws to allow fiduciary access to digital assets.

The Florida Fiduciary Access to Digital Assets Act

In 2016, Florida lawmakers enacted the Fiduciary Access to Digital Assets Act (the “Act”) to address the way technology has affected our private and public lives. Among the definitions included in the Act are:

(7) “Custodian” means a person that carries, maintains, processes, receives, or stores a digital asset of the user.

(9) “Digital asset” means an electronic record in which an individual has a right or interest. The term does not include an underlying asset or liability unless the asset or liability is itself an electronic record.

(13) “Fiduciary” means an original, additional, or successor personal representative, guardian, agent, or trustee.

(25) “User” means a person that has an account with a custodian.

The Act allows users to inform custodians that fiduciaries may access their information. If a user has not taken advantage of online tools provided by the custodian, the Act states:

“(2) If a user has not used an online tool to give direction under subsection (1) or if the custodian has not provided an online tool, the user may allow or prohibit disclosure to a fiduciary of some or all of the user’s digital assets, including the content of electronic communications sent or received by the user, in a will, trust, power of attorney, or other record.

Specific examples of digital assets include:

• Documents and information stored on electronic devices.
• Financial accounts.
• Gaming accounts.
• Social media accounts.
• Email accounts.
• Web sites and blogs.
• Cloud storage.
• Online subscriptions.
• Online store accounts.
• Book, music, and video collections.

It’s important to note that executors and other fiduciaries may be allowed to access some accounts, while access to other accounts is blocked. For example, a fiduciary may need access to financial accounts, but the user may limit or prohibit access to email, text messages, and social media accounts.

What to Do About Your Digital Assets.

Take some time to prepare an inventory of digital assets. Go to your online accounts and choose whether you want someone to have access to them. Remember that it’s the duty of an agent or guardian in the case of incapacity or an executor after death to manage your assets. Having your information organized and accessible makes their job easier.

Plan Now.

Include digital assets in your estate plans. We look forward to helping you preserve and protect your legacy through strong estate planning and careful protection of your privacy. Please call us at 772-324-9050 to schedule an appointment or complete our convenient Contact Form. Located in Palm City in Martin County, we also serve other surrounding areas like Stuart, Hobe Sound, Port St. Lucie, and Jupiter.